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Trade Advice Document

Trading advice from several sources is available to help businesses comply with the law.

The Health and Safety Executive website has advice on:

The Chartered Trading Standards Institute provides advice on a number of topics:

Intellectual property

In the guide

This guidance is for England, Scotland & Wales

Intellectual property (IP) can be a valuable asset to any business, be it large or small, a new or a long established business.

IP consists of four key elements: trade marks, copyright, designs and patents. The different forms of IP exist for different lengths of time.

Trade marks, copyright, designs and patents are property rights owned by the original creator, or subsequent owner, of the particular IP right and the rights owner can prevent others from unfairly using their rights. Unauthorised use of another's IP is known as infringement.

A rights owner or business can grant licences to third parties, which allow those third parties to use the business's protected IP in exchange for a fee. Licensing is a controlled and effective way for rights owners and businesses to generate wealth from their IP.

If a business uses another's IP without permission it is an infringement of those rights, which could result in the business being taken to court. In addition copyright, registered designs and registered trade marks are also protected by the criminal law and infringement may constitute a criminal offence.

Trade marks

Trade marks protect brand identity, trade names and distinctive logos; a trade mark is a badge of origin.

If a business uses its own trade mark or trade name, and establishes a trade reputation and goodwill, then the business will own an unregistered trade mark, which can be protected in civil law against 'passing off' (unauthorised third-party use).

Trade marks can also be registered at the Intellectual Property Office (IPO). Registration is proof of ownership and strengthens a business's trade mark rights with enhanced protection against infringement.

If you wish to register a trade mark you can apply online to the IPO.

Trade mark registration protects a trade mark for 10 years from the date of registration and is renewable every subsequent 10 years, so a registered trade mark may be protected in perpetuity. 

It is an infringement to use someone else's registered trade mark without permission and unauthorised use could result in civil action in a court.

It is also a criminal offence to use someone else's registered trade mark in the course of trade without permission.

If you wish to use someone else's trade mark you should contact the rights owner and seek permission or a licence to use the protected trade mark.

You can search the trade mark register on the GOV.UK website to find out if a mark is already registered.

GOV.UK also covers trade mark licensing and has further information on trade marks generally.

Copyright

Copyright protects original creative works; protecting literary, dramatic, musical and artistic works such as books, plays, songs, photographs, films, broadcasts, and computer software and programs.

Copyright is an automatic right that protects original works from the moment of first creation. There is no copyright registration system in the UK. Any original works created by a business are automatically protected as copyright works and become the property of the business. For example, a business that creates written material, photographs or makes its own website has created its own copyright material, which is protected against copying.

Copyright subsists for a limited period of time, known as 'the term' of protection (also known as the duration of copyright protection) so copyright lives and dies. Literary, dramatic, musical and artistic works are protected for the author's lifetime plus 70 years. The period of 70 years runs from the end of the calendar year of the death of the author. Other classes of copyright work have shorter terms of protection (see sections 12 to 15 of the Copyright, Designs and Patents Act 1988).

It is an infringement to copy someone else's copyright material without permission and unauthorised use could result in civil action in a court.

It is also a criminal offence to copy or knowingly deal in infringing copies of copyright works.

If you wish to use someone else's copyright work for business purposes you should seek permission and obtain a licence from the copyright owner. Further information on seeking permission can be found on the Copyright Hub.

Licensing bodies and collective management organisations (also known as collecting societies) can agree licences with users on behalf of owners and collect any royalties the owners are owed. More information on collective management organisations is available on the GOV.UK website.

See also copyright and copyright licensing on GOV.UK.

Designs

Designs protect the appearance of an article; protecting the unique look of parts or whole articles. Designs can be 2D, such as prints or patterns applied to items, or 3D articles, such as furniture, household items or clothing, or component parts of larger items.

Design rights are automatic rights that protect the article from first creation, like copyright. A 2D design is automatically protected for three years, while a 3D design is automatically protected for 15 years.

Designs can also be registered at the IPO for greater protection. Design registration is available for both 2D and 3D designs and can last for up to 25 years. An initial registration lasts for five years and can be subsequently renewed in multiples of five years for a second, third, fourth and fifth time, giving a maximum of 25 years protection.  

The principle of 'first marketing' applies to applications to register a design. This principle has the effect of creating a 12 month 'grace period' for an application. A business can choose between applying to register a design prior to going to market or to coincide with a product launch or go to market and register the design at a later date if a product becomes popular. This means a business can market a product and still apply to register the design within the first 12 months after first marketing. This 'grace period' allows a business to launch a product and test the market before seeking to make an application to register a design.

Note: this 'grace period' for design registration should be contrasted to patent registration where any 'prior disclosure' is fatal to an application to register a patent.    

If you wish to apply to register a design you can apply to the IPO online.

Like copyright, an unregistered design may also be protected and unauthorised use of someone else's unregistered design could result in civil action in a court. For more information on unregistered design protection see the ACID (Anti Copying In Design) website.

It is a criminal offence to deliberately copy or deal in infringing copies of registered designs.

If you wish to use someone else's registered design you should contact the rights owner and seek permission or a licence to use the protected design.

You can search the designs register online to find out if a design is already registered.

Information on design licensing is available on GOV.UK, as is more information about designs generally.

Patents

Patents protect inventions; they protect the function of new products and industrial processes.

Patents must be registered at the IPO to attract protection. To attract patent protection a product or process must be new, have an inventive step and be capable of industrial application. The idea must be new and must have been kept secret prior to the application for registration or else the application will be invalid and the patent will not be protectable.

You can apply to register a patent online.

Patent registration lasts for up to a maximum of 20 years. Initial registration protects the product or process for four years from the application date; the registration can then be renewed on an annual basis up to the 19th year. 

It is an infringement to use someone else's patent without permission and unauthorised use could result in civil action in a court.

If you wish to use someone else's patent you should contact the rights owner and seek permission or a licence to use the patent.

For more information on patent licensing see the GOV.UK website.

You can search the patent register online to find out if a patent is already registered and in protection.

If a patent has expired the information in the patent is in the public domain.

For further information about patents visit the GOV.UK website.

Business confidentiality, trade secrets, & non-disclosure

A business can protect secret or confidential information by the use of legally binding agreements that define the nature of the particular rights and restrict third-party use. These types of agreements are vital when developing patents, but can also be used to protect any form of IP and enable businesses to share commercially sensitive information in a controlled way. A breach of such an agreement could result in civil action for breach of contract and damages.

The GOV.UK website has guidance on how to protect your intellectual property.

Business assistance

The IPO's IP for business tools 'can help you create value from your ideas, turning inspiration into sustainable business success'. The free online tools include an IP 'health check' for business.

Penalties

Failure to comply with the above requirements is a criminal offence. The maximum penalty is a fine and ten years' imprisonment.

In addition the trade mark and copyright offences are 'scheduled lifestyle' offences under the Proceeds of Crime Act 2002, which can lead to forfeiture and confiscation of assets.  

Key legislation

Last reviewed / updated: August 2017

PixelPlease note

This information is intended for guidance; only the courts can give an authoritative interpretation of the law.

The guide's 'Key legislation' links may only show the original version of the legislation, although some amending legislation is linked to separately where it is directly related to the content of a guide. Information on amendments to UK legislation can be found on each link's 'More Resources' tab; amendments to EU legislation are usually incorporated into the text.

© 2017 itsa Ltd.

The county council is not responsible for this information.